DPP v Conlon

CourtSupreme Court
JudgeKeane C.J.
Judgment Date25 Jun 2003
JurisdictionIreland
Neutral Citation2003 WJSC-SC 3120

2003 WJSC-SC 3120

THE SUPREME COURT

Keane C.J.

Hardiman J.

Geoghegan J.

260/02
DPP (GANNON) v. CONLON

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF INSPECTOR PATRICK J. GANNON
APPELLANT

AND

GREGORY CONLON
RESPONDENT

Citations:

ROAD TRAFFIC ACT 1961 S49

SUMMARY JURISDICTION ACT 1857 S2

DCR 1997 r8(3)

COURTS OF JUSTICE ACT 1924 S86

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

DCR 1997 O.122

DCR 1997 O.102 r8

DCR O.10 r12

DPP V MCMAHON UNREP MURPHY 27.6.2002 2002/9/2202

Synopsis:

HIGH COURT

Jurisdiction

Practice and procedure - Jurisdiction of High Court to proceed with case stated - Criminal law - Defect in service of notice - Whether High Court erred in treating this as matter going to jurisdiction - Summary Jurisdiction Act, 1857 - District Court Rules, 1997 (260/2002 - Supreme Court - 25/6/2003)

DPP v Conlon

The DPP brought an appeal by way of case stated against an order of the District Court. The High Court held that it had no jurisdiction to proceed with the case stated. The High Court refused jurisdiction on grounds that the notice had been served on the respondent’s solicitor by registered post and not the respondent personally.

Held by the Supreme Court (Keane CJ, Hardiman, Geoghegan JJ) in allowing the appeal that the decision of the High Court in declining jurisdiction was wrong in point of law. The matter should have been dealt with on the basis that there having been no challenge to any proceedings in the District Court by way of judicial review, the High Court was obliged to proceed on the assumption that everything had been regularly done.

1

JUDGMENT of the Court (ex-tempore) delivered the25th day of June 2003 , by Keane C.J.

2

This is an appeal from a judgment and order of the learned President of the High Court delivered on the 20 th December 2001. There was before the President an appeal by way of case stated brought by the appellant, the Director of Public Prosecutions, against an order of District Judge Brophy made on the 26 th January 2000 at Navan District Court. It appears from the case stated, as signed by the District Judge, that the respondent was before the District Court on that occasion on a charge of driving a mechanically propelled vehicle when then was a concentration of alcohol in his urine above the admitted level under the relevant road traffic legislation.

3

It appears that, at the close of the prosecution's case, the solicitor for the defence submitted that the prosecuting Garda had failed in his direct evidence to state that the doctor called to the Garda Station was a designated doctor and failed to advise the accused that the doctor was the designated doctor. The question raised in the Case Stated for the opinion of the High Court is as to whether a failure to give direct evidence that the doctor called to the Garda Station was a designated doctor, warrants a dismissal of a charge under s. 49 of the Road Traffic Act, 1961as amended.

4

That was what came before the President, but this court does not concern itself this morning with the actual question that arises in the Case Stated because before the learned President embarked on a consideration of the actual question raised by the case stated, he was invited to hold that he had no jurisdiction on a number of different grounds. In his judgment the learned President deals with the various grounds raised by the respondent as a ground for saying that he should not proceed or did not have the jurisdiction to proceed with the case stated. I can deal with three of those grounds briefly, since in each case the learned President was satisfied that they were not grounds which precluded him from dealing with the Case Stated, and there has been no Notice to Vary served in respect of his findings to that effect.

5

The first was whether the Notice was required to be served by the appellant was in the prescribed form and he said he was satisfied that it was. The second was as to whether the form referred to the correct District Court area and in that case there was a typographical error, acknowledged to be a typographical error, the President was satisfied that that was not a ground in which he should decline jurisdiction, because the appropriate notice had been received by the District Court clerk. The third complaint, and this was the one in respect of which he eventually found in favour of the respondent was that the notice had been served on the respondent's solicitor and not by registered post and also had been served on the solicitor for the respondent and not on the respondent personally. Now that is a ground which I will return because that is the ground on which the President decided in favour of the respondent. The fourth ground was that the application to the District Judge was not made within three days after the determination as required by the Summary Jurisdiction Act, 1857 s. 2, although lodged within the time limited by the District Court Rules 1997.

6

The learned President went into that fourth matter with considerable detail. He considered the various authorities, including two authorities, of this court and he concluded that the ground of objection to his jurisdiction that the application had not been made within three days, although within the time prescribed by the District Court Rules, was not well founded and that since the appellant had complied with the fourteen day period prescribed by the District Court Rule, in accordance with what he considered to be the burden of the previous authorities, he did have jurisdiction so far as that matter was concerned and that he was not disposed to entertain that ground of objection.

7

That brings one back to the third matter in respect of which he was concerned, namely compliance or non-compliance with r. 8 subparagraph 3 of the District Court Rules of 1997, namely that the notice of application to the District Judge requiring him to state a case for the determination of the High Court as to whether his determination was erroneous in a point of law, had not been served, as required by the...

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